Presentation of information: Is the EPO stretching the line for patentable subject-matter, again?

A cat looking for information

The new Guidelines for Examination of the EPO, valid from 1^st of November 2017, include an interesting revised (and rather detailed) section G II 3.7, dedicated to the patentability of claims based on presentation of information. Presentation of information under 52(2)(d) of the EPCincludes any form of information (such as visual or, audio) and covers both its cognitive aspect as well as the means of communication. However, the fact that the claims include purely cognitive (and thus non-technical) aspects does not automatically mean hat they are excluded from patentability. Presentation of information that assists the user in achieving a technical task has a technical effect (confirmed also in T336/14 and T1802/13). 

This, one could claim, is old news. Nonetheless, the Guidelines continue by stating that whether a specific invention falls under the scope of Art. 52(2)(d) might depend either on its content or on the way it is presented. When the information has as its sole objective to assist the recipient in making a purely non-technical decision, then the presentation of information is non-technical:

“Information representing a state of a non-technical application run on a computer system, such as the state of a casino game, a business process or an abstract simulation model, constitutes non-technical information. This type of information is exclusively aimed at the user for his subjective evaluation or non-technical decision-making which is not directly linked to a technical task".

This means that what is important is the role this information plays: will it be used for a technical purpose or not?

The Guidelines continue:

“A feature defining a presentation of information produces a technical effect if it credibly assists the user in performing a technical task by means of a continued and/or guided human- machine interaction process (T 336/14 and T 1802/13). Such a technical effect is considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature.”

The Guidelines add yet another requirement, namely,  the manner of presenting information should produce in the mind of the user an effect that does not depend on the user’s psychological factors but on purely objective physical parameters. The choice of one or another way of presenting information, when this is based on the subjective preferences of the recipient (some prefer that information is presented in numerical way, others in text,  yet others that the information to be conveyed in writing in some audio-visual manner) may thus not be considered technical. On the other hand, when the choice of presentation mode depends on the recipients physiological attributes, the presentation of information has a technical character. 

One of the examples referred to in the Guidelines is  a  visual aid that permits a surgeon to position an implant in a more precise, timely and credible manner. Such a presentation of information would in fact provide technical effect.  Yet another interesting example provided by the Guidelines is that of a soccer game:

“In a video soccer game, the particular manner of conveying to the user the location of the nearest teammate by dynamically displaying a guide mark on the edge of the screen when the teammate is off-screen serves the technical purpose of facilitating a continued human-machine interaction by resolving conflicting technical requirements: displaying an enlarged portion of an image and maintaining an overview of a zone of interest which is larger than the display area”

So far so good! But where do we draw the line of patentability when it comes to inventions that cover methods related to the presentation of information? It seems that the above-stated example allows for a certain  range e of interpretation. When the presentation of information (both content andr method of presentation) allows the recipient to perform a technical act (in the previous examples, placing an implant or identifying a player) in a more timely, precise and credible manner, it will be considered to have a technical effect. 

OK, but how about, for instance, claims related to lean manufacturing? Lean manufacturing covers methods that involve the development of information and the appropriate communication of the information to users (employees involved in the production process)., It has as an objective to minimise waste and costs and to maximise efficient production, taking into consideration objective factors such as the number of employees, the space, the nature of the product, and the constraints of the manufacturing processes.. An application of the Guidelines would lead us to the conclusion that although lean is per se not technical, it might in fact provide a technical result, since it is presented proactively,  depends on the user’s physical parameters, and its goal is to enable the user to perform a task in a more efficient and precise manner. The result of the different steps of a lean production method are in fact technical (such as reduced time, decreased number of accidents, and  enhanced quality of products). Against this backdrop, it seems that the new G II 3.7EPO Guidelines open up  new opportunities with regards to the definition of patentable subject-matter.

A final thought: If applying the Guidelines leads to the conclusion that a method of lean manufacturing could be a patentable invention, how far away are we from discussing patentability of pure business methods in the EPO?